Reply Brief — Environmental Defense Fund, Inc. v. Wheelabrator Technologies, Inc.

Bupreme Court, U.S.

iy Kr l i i D

©

QCT 31 1991

No. 91-506

sms Wicetshceteeamnai CLERK

In The

Supreme Court of the United States

October Term, 1991

+

ENVIRONMENTAL DEFENSE FUND, INC.,

Petitioner,

WHEELABRATOR TECHNOLOGIES INC. and

WESTCHESTER RESCO COMPANY, L.P.,

Respondents.

+

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

.

REPLY TO BRIEF IN OPPOSITION

+

Leon M. Despres Of Counsel:

(Counsel of Record)

R. Epwarp WILHOITE, JR. KAREN FLOoRINI

DESPRES, SCHWARTZ & ENVIRONMENTAL

GEOGHEGAN DeFENSE FUND

77 W. Washington Street 1616 P Street, N.W.

Suite 711 Suite 150

Chicago, IL 60602 Washington, D.C. 20036

(312) 372-2511 (202) 387-3500

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

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I. The Effect Of Section 306 Of The Clean Air Act

Amendments Of 1990 On Section 3001(i) Of The

Resource Conservation And Recovery Act Is Not

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Il. Section 306 Of The Clean Air Act Amendments

Of 1990 Does Not Render This Court’s Review Of

Section 3001(i) Of The Resource Conservation

And Recovery Act Academic ..................

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TABLE OF AUTHORITIES

Page(s)

Cases

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies, Inc., 931 F.2d 211 (2d Cir. 1991)..2, 4, 7

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)..... 1

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111

6. | rrr rr eS 1

STATUTES AND REGULATIONS

RCRA § 3001(i)

42 USA. § GOZO). 2 occ ccccccetuceyeeseeaee passim

CAAA § 306

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LEGISLATIVE AND ADMINISTRATIVE MATERIALS

H. Rep. No. 952, 101st Cong., 2d Sess. 392 (Oct.

MA, TORE sca. ivrce va cataveussh ease eee as 5

H.R. Rep. No. 198, 98th Cong., 2d Sess. 19-20........ 7

51 Fed. Reg. 21648, 21649, col. 1 (June 13, 1986)...... 6

REPLY TO BRIEF IN OPPOSITION

Respondents Wheelabrator Technologies Inc. and

Westchester Resco Company, L.P. (collectively “Wheel-

abrator”) raise in their brief in opposition the argument

that section 306 of the Clean Air Act Amendments of 1990

(“CAAA”) renders the issues raised by Environmental

Defense Fund, Inc. (“EDF”) in its petition for a writ of

certiorari academic. This argument is not properly before

the Court and should be disregarded. Moreover, Wheel-

abrator’s argument is patently erroneous on the merits.

ARGUMENT

I. The Effect Of Section 306 Of The Clean Air Act

Amendments Of 1990 On Section 3001(i) Of The

Resource Conservation And Recovery Act Is Not

Properly Before This Court.

An argument before the Supreme Court that would

modify the judgment of the court below “cannot be pre-

sented unless a cross-petition has been filed.” Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 119 n.14 (1985). Cf.

Granfinanciera, S.A. v. Nordberg, 492 U.S 33, 39 (1989) (party

may not defend judgment on a ground not raised in a cross-

petition where affirmance on the alternate ground would

expand or contract the rights of either party established by

the judgment below). Wheelabrator has failed timely to file a

cross-petition for a writ of certiorari on the issue of the effect

of section 306 of the CAAA, 42 U.S.C. § 6921 note, on the

administration of section 3001(i) of the Resource Conserva-

tion and Recovery Act (“RCRA”), 42 U.S.C. § 6921(i). For this

reason, Wheelabrator’s argument is not properly before this

Court.

The “threshold question” addressed by the appellate

court was “whether Congress, in adopting the Clean Air

Act, [sic] Amendments of 1990. . . intended to preclude

the enforcement of existing environmental laws and regu-

lations as they relate to the disposal of incinerator ash.”

See Appendix to Petition for Writ of Certiorari at A-8.

EDF contended that section 306 only precluded addi-

tional regulation of ash generated by a resource recovery

facility, but did not preclude enforcement of current regu-

lations. After considering the statutory language and the

legislative history of the CAAA, the appellate court con-

cluded “that Congress did not intend to erect a bawto the

enforcement of pre-existing environmental statutes and

regulations.” App. at A-8.

Having concluded that the case was properly before

it, the appellate court necessarily went on to determine

the current requirements imposed on a resource recovery

facility by section 3001(i) of RCRA. Pursuant to the judg-

ment below, whatever the current statutory and regula-

tory scheme, that scheme shall continue to be enforced

prospectively by the Environmental Protection Agency

(“EPA”) and private citizens unless section 3001(i) is

amended by Congress upon its reauthorization of RCRA.!

Thus, the obvious result of the appellate court’s decision

' Although reauthorization proceedings for RCRA have

begun, the Court can take judicial notice of the fact that it took

approximately 8 years for Congress to reauthorize the Clean Air

Act. Thus, it is far from clear that the Court’s resolution of the

significant environmental issues raised by EDF in its petition

will not have an impact well beyond the initial reauthorization

period.

is that the Clean Air Act Amendments of 1990 did not

eliminate the prospective impact of this case.

More importantly here, the Clean Air Act Amend-

ments of 1990 say nothing about the substantive require-

ments of section 3001(i) of RCRA. And it is this issue that

EDF has presented to the Court in its petition. The inter-

action of section 306 of the CAAA and section 3001(i) of

RCRA, as clearly recognized by the court below, is a

wholly separate issue. Thus, it is for good reason that

EDF failed to mention the CAAA in its petition for wit of

certiorari. See Brief in Opposition, p. 2. Because the appel-..

late court’s holding regarding the CAAA is consistent

with the argument advanced by EDF below, EDF obvi-

ously did not seek a review on writ of certiorari of this

issue.

For the Court now to revisit the CAAA issue would

not merely be to find an alternative ground on which to

support the judgment of the court below as to the meaning

of section 3001(i). The argument advanced by Wheelabra-

tor in its brief in opposition regarding the effect of section

306 of the CAAA flatly contradicts the holding of the

appellate court. Accordingly, to adopt Wheelabrator’s

argument would be to modify the judgment below. It

certainly was Wheelabrator’s prerogative to so petition

this Court. However, if Wheelabrator wished to challenge

the appellate court’s judgment, it must have filed a cross-

petition within 30 days of receipt of EDF’s petition. See

Sup. Ct. R. 12.3. Having failed to do so, Wheelabrator’s

argument is not properly presented to this Court and

must be disregarded.

Even more disturbing, however, is Wheelabrator’s

failure even to mention the holding of the appellate court.

The appellate court expressly rejected Wheelabrator’s

argument that resolution of the issues presented by EDF

cannot have any prospective impact as a result of section

306 of the CAAA. The court unequivocally held that “the

applicable regulatory scheme currently in existence is not

rendered null and void as it relates to the regulation of

incinerator ash”. App. at A-10. By its omission, Wheel-

abrator effectively misrepresents the record and the law

before this Court. The decision of the court below quite

plainly is that section 306 of the CAAA does not preclude

enforcement of section 3001(i) of RCRA, but that section

3001(i) exempts the ash generated by a resource recovery

facility from the hazardous waste requirements of Subti-

tle C of RCRA. As indicated above, EDF does not chal-

lenge the first conclusion, but argues that the appellate

court erred in its interpretation of section 3001(i).

Therefore, if EDF were ultimately to prevail on the

issues presented in its petition, the Court would not

nullify the appellate court’s conclusion that the CAAA do

not preclude enforcement of section 3001(i), but the Court

would significantly, and prospectively, alter the appellate

court’s improper interpretation of what the current statu-

tory and regulatory scheme is that should be enforced.

Wheelabrator’s failure to direct the Court’s attention to

the judgment below on this issue is inappropriate.

II. Section 306 Of The Clean Air Act Amendments Of

1990 Does Not Kender This Court’s Review Of Sec-

tion 3001(i) Of The Resource Conservation And

Recovery Act Academic.

Even assuming that Wheelabrator’s argument

regarding the CAAA is properly before this Court, the

argument is without merit. Wheelabrator contends that

the effect of the regulatory moratorium contained in sec-

tion 306 of the CAAA is to eliminate any prospective

impact from the Court’s resolution of the meaning of

section 3001(i). Thus, Wheelabrator argues, taking up this

issue would be a waste of judicial resources. However,

section 306 of the CAAA demonstrably does not limit the

prospective effect of this case.

Section 306 of the CAAA provides that “for a period

of 2 years after the date of enactment... ash from solid

waste incineration units burning municipal waste shall

not be regulated by the Administrator of the Environ-

mental Protection Agency pursuant to Section 3001 of the

Solid Waste Disposal Act.” Pub. L. No. 101-549, 104 Stat.

2399 (1990) (codified at 42 U.S.C. § 6921 note). The accom-

panying committee report provides that section 306 was

not intended to prejudice this litigation:

The conferees do not intend to prejudice or

affect in any manner ongoing litigation, includ-

ing Environmental Defense Fund v. Wheelabrator,

Inc. 725 F. Supp. 758 (2d Cir.) [sic] and Environ-

mental Defense Fund v. City of Chicago, Appeal

No. 90-3060 (7th Cir.), or any State activity

regarding ash.

H. Rep. No. 952, 101st Cong., 2d Sess. 392 (Oct. 26th,

1990).

Congress may reconsider the issue of ash generated

by a resource recovery facility during its reauthorization

of RCRA. For that reason, section 306 of the CAAA pro-

vides that the EPA shall not promulgate further regula-

tions on ash under section 3001(i). Presumably, at the

time of reauthorization, Congress will determine whether

it wishes to revise section 3001(i) to exempt ash from the

requirements of Subtitle C. However, as a result of section

306, the EPA is now precluded from either listing, regard-

less of a facility-specific characteristic, incinerator ash as

a hazardous waste or revising its current regulatory pol-

icy to exempt ash exhibiting such a characteristic from

the requirements of Subtitle C.?

Nothing in section 306 suggests that the EPA may not

enforce existing regulations. In the lexicon of administra-

tive action, regulation and enforcement are not the same.

“To regulate” signifies a specific administrative act that

requires notice and a comment period. However, the EPA

need not promulgate new regulations to enforce compli-

ance -with existing statutory or regulatory requirements

under RCRA.? Indeed, Congress recognized this critical

2 Under EPA regulations, a solid waste is a hazardous

waste if it is included on the lists, 40 C.F.R. §§ 261.30-261.33(f),

or if it displays any one of four characteristics (ignitability,

corrosivity, reactivity, toxicity), 40 C.F.R. §§ 261.21-261.24, and is

not otherwise exempt, 40 C.F.R. § 261.3(a)(1). “| Tlhe characteris-

tics define broad classes of wastes that are clearly hazardous,

while the listing process defines some wastes that may pass the

characteristic but are nonetheless hazardous wastes.” 51 Fed

Reg. 21648, 21649, col. 1 lune 13, 1986).

* Significantly, section 306 of the CAAA did not amend

section 3001, which imposes requirements on parties under

} | }

RCRA. Indeed, in the case below the EPA was not required to

distinction in enacting the Hazardous and Solid Waste

Amendments of 1984, which included section 3001(i). The

legislative history states that Congress “believes the

RCRA regulatory and enforcement program must be con-

ducted in a manner that controls and prevents present

and potential endangerment to public health and the

environment.” H.R. Rep. No. 198, 98th Cong., 2d Sess.

19-20, reprinted in 1984 U.S. Code Cong. & Admin. News

5576, 5579 (emphasis added).

Rather, section 306 was intended only to limit the

ability of the EPA to alter the existing regulatory scheme

before Congress had an opportunity to reconsider the

issue in its reauthorization of RCRA. As the court below

properly held, the only effect of section 306 of the CAAA

is to “impos[e] a two year moratorium on any new EPA

regulatory activity concerning incinerator ash.” App. at

A-10 (emphasis supplied). Clearly, Congress intended

only to maintain the status quo until it took up the issue

again in two years. Otherwise, its unambiguous state-

ment in the legislative history that it did not intend to

affect in any manner this litigation would make no sense.

CONCLUSION

For the reasons stated, Wheelabrator’s argument

regarding the effect of section 306 of the Clean Air Act

Amendments of 1990 on section 3001(i) of the Resource

Conservation and Recovery Act is both not properly

,

take any action EDF brought suit in the district court to enforce

section 3001(i). Section 306 clearly does not preclude EDF from

maintaining such a suit.

before this Court and incorrect. Wheelabrator’s remain-

ing arguments in its brief in opposition are similarly

without merit. Therefore, the requested writ of certiorari

should issue.

Respectfully submitted,

Leon M. Despres

(Counsel of Record)

R. Epwarp WILHOITE, JR.

Despres, SCHWARTZ & GEOGHEGAN

77 W. Washington Street

Suite 711

Chicago, IL 60602

Attorneys for Petitioner

Of Counsel:

KAREN FLOoRINI

ENVIRONMENTAL DEFENSE FUND

1616 P Street, N.W.

Suite 150

Washington, D.C. 20036